Under the Medical Treatment Planning and Decisions Act, a person has decision-making capacity to make a decision if the person is able to do the following:
- understand the information relevant to the decision and the effect of the decision
- retain that information to the extent necessary to make the decision
- use or weigh that information as part of the process of making the decision
- communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.
A person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.
An adult is presumed to have decision-making capacity unless there is evidence to the contrary.
- has decision-making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support
- may have decision-making capacity to make some decisions and not others.
If a person does not have decision-making capacity for a particular decision, it may be temporary and not permanent.
It should not be assumed that a person does not have decision-making capacity to make a decision:
- on the basis of the person's appearance
- because the person makes a decision that is, in the opinion of others, unwise.
A health practitioner needs to record on the patient’s clinical records the reasons they were satisfied the patient did not have decision-making capacity.
Decision-making capacity and recovery within a reasonable time
If the patient is likely to recover decision-making capacity for the medical treatment decision within a reasonable time, the health practitioner should wait for the patient to be able to make the decision, unless a further delay would result in a significant deterioration of the patient's condition.